Transit Company), that it should have been kept on file, and proof of the authority of the State otherwise obtained, and that it oper- ated as a legislative withdrawal................
The lines of the South and North Alabama Company (successors) were definitely fixed on May 30, 1866, between Decatur and Cal- era, and on July 26, 1871, between Calera and Montgomery, the dates respectively when maps of definite location were filed in the General Land Office, notwithstanding the fact that the granting act did not require the filing of such maps.............
The map of definite location of the Central Pacific Company was received and approved by the Secretary October 20, 1868, upon which date its right attached, and not, as heretofore held, on July 18, 1868, the date of the adoption and certification of the map by the officers of the company..
The line of the Dubuque and Pacific (now Iowa Falls and Sioux City) Company was definitely fixed October 13, 1856, the date of acceptance by the Secretary of the map of definite location, and not at date of survey in the field, as heretofore held..
The line of the Saint Vincent Extension of the Saint Paul and Pacific (now Saint Paul, Minneapolis and Manitoba) Company became definitely fixed on December 19, 1871, when the map of definite location was accepted by the Secretary, and not at date of survey in the field, as formerly held..... 481 CONFLICTS.
The act of July 1, 1862 (Pacific roads) granted "public lands," but defined them as those lands which were public at date of definite location of the roads
Land within the granted limits of the road (Saint Paul and Pacific, now Saint Paul, Minneapolis and Manitoba), which was covered by an entry (homestead) subsisting at date of the grant, was excepted from said grant..........
Where a subsisting entry (homestead) ex- cepted the land from the grant, upon its cancellation thereafter (for failure to make final proof) the land became public, and sub- ject to entry or selection by the first legal applicant...
Where entry was made on the same day as that on which the right of the company (Saint Paul, Minneapolis and Manitoba) at- tached, the entry man acquired the superior right...
An entry (homestead) of record when the State conferred the grant on the company (Hastings and Dakota), though allowed after withdrawal, excepted the land from the grant
Where the tract was covered by a pre- emption filing at date of the grant (Texas and Pacific) and withdrawal (on preliminary line, the burden rests upon a subsequent
Where a pre-emption right was extin- guished on the day of public sale (1858), but the pre-emptor was still maintaining settle- ment, etc., at date of definite location (1863), the tract was not excepted from the grant (Central Pacific)
Entry (timber-culture) was made in 1878, embracing land in Sections 14 and 23, and held for cancellation in May 1879, with right of amendment so as to locate the entire tract in either section, but Lo actual cancel- lation was made, or appeal taken, or amend- ment offered; withdrawal for the road (Northern Pacific) was made July 1879, em- bracing Section 23, and in 1880 the entry- man made a second entry (including one- half of the land covered by the first entry) of land within Section 23; held that said sec- ond entry, being an amendment of the first entry, was valid.....
A donation claim (New Mexico) void on its face (showing settlement subsequent to the time limited) does not except the land from the grant (Atlantic and Pacific) .............. 522 Where the land was reserved for the set- tler (donation) at date of definite location (Northern Pacific), it was excepted from the grant
Where the tract was within the exterior limits of a Mexican claim (Moquelamos), which was sub judice (in the courts) at date of the grant and withdrawal, it was not pub- lic land and did not pass to the company (Western Pacific) .
Where the tract was within the exterior limits of rancho (by the La Croze survey) at date of the grant (Central Pacific), but was segregated therefrom (by the approved and confirmed Stratton survey) at date of execu- tive withdrawal and of definite location, it was public land and inured to the grant.... 477 Where the tract was in the exterior limits of a rancho (San José), as surveyed, at date of filing map of designated route (Southern Pacific), but was excluded therefrom by a subsequent approved survey, it was excepted from the grant
The rancho claim (Millijo, or La Punta) was rejected finally in 1855, and application to purchase made in 1869, under Sec 7, Act July 23, 1866; the grant was made in March 1871, and withdrawal (on preliminary line) in October 1871; in 1872 the sale of the land was suspended, pending consideration of the application, which, in 1873, was rejected; held that the land was subject to the grant, and reserved for the company (Texas and Pacific), though definite location of the road has not yet been made
At date of the grant and withdrawal the
land was within the boundaries of a Mexi- can claim (Diaz), which was subsequently declared invalid, and thereafter, but before claim of the settler (Ryan), the company (Central Pacific) selected it; held by the Su- preme Court that it was public land at date of the selection, and that said selection barred the settlement claim.....
A valid and subsisting pre-emption claim (settlement) at date of withdrawal excepted the tract from withdrawal........................
Where settlement (pre-emption) was made on unsurveyed land after withdrawal, and on survey was found to be on an odd sec- tion, the entry allowed must be canceled; (see also p. 551)
Land within the indemnity limits of the road (Hastings and Dakota), which was cov. ered by entry (homestead) subsisting at date of the withdrawal was excepted from the withdrawal
Where a subsisting entry homestead) ex- cepted a tract from the withdrawal (for Hast- ings and Dakota), on its cancellation (for fail ure to make final proof) thereafter the land be- came public, and was subject to entry or selection by the first legal applicant.......
An entry (homestead) on the tract at date of withdrawal (for Northern Pacific), though the land was afterwards abandoned, ex- cluded it from the withdrawal; on cancella- tion of the entry the land was subject to ap- propriation by the first legal applicant..... 506 Where pre-emption settlement was made subsequently to withdrawal, the claim may remain, subject to the right of selection by the company (California and Oregon) ...... 512 The practice of allowing pre-emption claims or homestead entries on lands with- drawn for railroads, subject to final ad- justment of the grant, is forbidden; (circu- lar) ...513, 517, 558, 560
Where the company (Atlantic, Gulf and West India Transit, now Peninsular) relin- quished certain granted lands in 1875 and 1881 in favor of actual settlers, they cannot be heard to object to the patenting of the settlement claims on said lands
.531, 564 Relinquishment may be made only where the filing or entry (granted limits) was made under the pre-emption or homestead law, not of land covered by a timber-culture entry.. 528 Where relinquishment of granted land and lieu selection were made after definite loca- tion, but before the road (Northern Pacific) was completed opposite to the tracts relin- quished, said selection, of record, barred sub- quent claim (additional homestead)
A relinquishment under act of June 22, 1874, may not be made of a tract (indemnity limits) prior to its selection; where entry (homestead) was allowed after withdrawal, if, when the tract is selected, it appears that it is needed to satisfy the grant, relinquish- ment and lieu selection will be allowed to the company (Hastings and Dakota)................. CONFIRMATION.
Sec. 2, Act of April 21, 1876; three facts are prerequisite to title thereunder, viz: 1, a valid claim existing at date of the with- drawal; 2, re-entry under decisions and rul- ings of the Land Department; 3, final proof must show full compliance with the law... 500
Sec. 3, Act of April 21, 1876; entry (home- stead) was made within the conflicting limits of the Coosa and Tennessee and the Wills Valley portion of the Alabama and Chatta- nooga Railroads; no portion of the former road has been completed, and the entry was made after expiration of the time for com- pleting the latter road and prior to the ex- tension granted by act April 10, 1869; held that it is confirmed............. RIGHT OF WAY.
For value, about a month after entry (tim- ber-culture), is proof of fraudulent inception 92 Must be intentionally and voluntarily made; one made through misrepresenta- tion and deceit is void...
Obtained while the entryman (timber-cult- ure) was in a drunken stupor is fraudulent; application for reinstatement of entry is al- lowed.....
The failure of a contestant to pay to the claimant (pre-emption) an alleged contract consideration for his relinquishment, duly filled, will not be considered.........
Filed with an application to enter, re-
Held for examination and found valid, re- lates back to date of its filing, and the appli. cation with ti is the first legal application.. 324 Transmitted by mail, is to be regarded as filed at the moment it was received at the local office (9 a. m.), though the letter trans- mitting it was not opened for some time aft- erwards; timber-culture application accom. panying it is to be similarly regarded.............. 326 Purchase of, gives no rights against the United States
Of a timber or stone claim prior to final proof, confers no right on the party obtain- ing and filing it.
On relinquishment of a homestead entry, the settlement of a prior settler, applying for homestead entry seven days after the relinquishment, takes effect under Sec. 3, Act of May 14, 1880
Of land covered by a pre-emption filing is a waiver of claim under the filing, and there- upon another's settlement made prior to the relinquishment takes effect
Filed after closing of a case in the local office does not affect status of the parties.. 282 Executed by entryman's father as agent, and left with him for subsequent filing, but not filed until after the entryman's death; the law casts the homestead right on the widow, who was entitled to the land, unless she actually or constructively ratified the relinquishment; ratification may be shown by failure to take possession of or improve the land, or give notice to the government of her intention to claim it, and by silence whilst another begins settlement and im. provement
Fees paid on homestead or timber-culture entries, canceled for conflict or because they have been erroneously allowed and cannot be confirmed, will no longer be credited upon new entries, but will be repaid on proper ap.
Of fees and commissions allowed where entry (timber-culture) could not be amended because of intervening adverse rights...... 255 Where lands are purchased at double mini- mum while within the granted limits as fixed by the general route, and are afterwards left outside of said limits by the definite loca- tion, repayment of excess may be made.... 676 Where selections were made by the rail- road company (North and South Alabama) under act of June 22, 1874, but rejected be- cause the odd sections whereon based were disposed of before definite location, repay. ment of fees and commissions may be made. 681 Where the local officers erroneously sold double minimum land at the minimum price, and on demand the purchaser declined to pay the additional price, since entry was erroneously allowed and cannot be con- firmed, he may have repayment on compli- ance with circular requirements.....
Certain lands (San Francisco district) were withdrawn for a railroad (Central Pacific), but were rejected from the grant, and prior to restoration were embraced by another grant (Southern Pacific), but were rejected from it also; the odd sections were ordered to be sold at minimum and the even sections at double minimum, and the applicant bought at the double minimum price; he cannot have repayment...... .....679, 680 There is no provision for the repayment of the excess where the lands, reduced by Sec. 3, Act of June 15, 1880, were subse- quently sold at double minimum price...... 677 Of the excess over minimum paid for rail- road lands which lie within the exterior lim- its of a grant (Northern Pacific), but which do not pass by it because they form part of a reservation (Bitter Root Valley), is not within the intention of the relief provided by the act of June 16, 1880..
There is no authority for repayment of moneys deposited, under Sec. 2356, R. S., in in excess of the cost of the land purchased. 659 Of the bonus voluntarily paid for an entry (timber-culture), where two or more appli- cations were simultaneously made, and the preferred right of entry was put up at auc- tion, is denied .687, 688, 689
Where a person was misled as to the char- acter of the land by a private survey, and relinquished his claim (desert-land), as re- sponsibility for the mistake does not rest on the government, repayment is denied..................... 694
Where one, who on filing application fur- nished proof of desert-land character, re- linquished the tract voluntarily, and asked repayment on the ground that it was not desert-land, he is estopped by his proofs from denying its character; repayment denied .. 633 Where a desert-land applicant failed for three years to comply with the requirements of the law (reclamation, alleging inability to obtain water), and relinquished voluntarily, repayment of the purchase-money (first in- stallment) is denied
Where the entry (commuted homestead) was canceled for laches or fraud of the entry. man, exhibited in his final proofs, repayment of purchase-money is denied
The law authorizing repayment does not provide for return of the money to persons who have voluntarily abandoned or relin- quished their entries
Where hearing was ordered on allegations impeaching the good faith of the entryman (pre-emption), and, on default by him, the entry was canceled on the evidence, repay- payment is refused...........
Where a pre-emptor had made final proof, and (it transpiring that he had also made a homestead claim during the life of his pre- emption) afterwards relinquished it, since the entry was not canceled through fault of the government, repayment of purchase- money is denied.................
Where the entry was a second entry (tim- ber-culture) and illegally made, but at date thereof the local officers were ignorant of the prior entry, repayment of fees and com. missions is refused.
Where there was no error on the part of the United States, and the entry (pre-emp tion) was allowed on false proofs, the entry. man, or his witnesses, swearing falsely that he had not removed from land of his own, re- payment of purchase-money is refused...683, 685 The act of June 16, 1880, does not contem. plate repayment where the entry (indemnity scrip location) was founded in fraud (deliv- ery of scrip to one whose claim was without right), even though the assignee was igno- rant of the fraud
Where the entry (pre-emption) is cancel ed for false swearing in the final proofs, re payment of purchase price (Supreme Court scrip) will not be made Reservations.
Lands constituting government reserva- tions are not subject to pre-emption or home- stead claims, and upon relinquishment are regarded as a distinct class of public lands; it has been customary, when Congress in- tended to open them to entry, to express such intention plainly; otherwise they are subject only to appraisal and sale; (sce, also, p. 521)
The theory of the appraisal before sale of
these lands is that time enhances their value by the increase of population around them.. 610 No mere de facto reservation or appropria- tion can defeat the rights of qualified claim- ants to the public land
Are created by law or order, and not by mere markings on the official plats, whether of saline, swamp, mineral, or timbered lands; qualified claimants have the right to claim them, and to show that they are not of the character indicated
The failure of the plats to show the saline character of a tract does not subject it to entry; it is reserved by the law, and not by markings on the plats...
Unlawful settlement on abandoned reser- vations (military) is trespass...................... INDIAN.
Klamath River, California, has been main- tained since passage of act of April 8, 1864; when selections for the Indians within it are made, the question of restoring the re- maining lands to the public domain will be considered
Fort Berthold, Montana and Dakota, made by executive order May 12, 1870; the greater part fell into a prior withdrawal for the Northern Pacific Railroad by executive or- der of July 13, 1883, restoring it to the public domain; no rights by settlement were ac- quired in it...
Crow Indian, Montana; the Indian title was confirmed, not acquired, by the treaty of 1868; the Northern Pacific Railroad may not take materials for construction from it, because it was not public land at date of the grant.....
Bitter Root Valley, Montana, above the So-So Fork, did not pass to the Northern Pacific Railroad; under act of June 15, 1872, but fifteen townships were to be sold at min- imum price; the price of the remainder should be fixed at double minimum
Ute (Uncompahgre and White River), Col- orado, opened by act of July 28, 1882, with saving of rights of settlers in the ten-mile strip west of the 107th meridian, which had been mistakenly surveyed and settled on; the act legalized the illegal occupation, nothing more; it did not save any rights, or affect the price of the lands.
Fond du Lac, Minnesota; Indians may not cut timber on it except to improve the land, and only after approval of their selections. 821 Kansas reserves; see Indian Lands. MILITARY.
Fort Abercrombie, Minnesota, opened by act of July 15, 1882; held that under the act one who had cultivated and improved part of a forty since 1871, though never actually residing on it, was entitled as against one who had begun settlement and residence in 1881, with notice of the prior occupation.... 206 Fort Saint John, Louisiana, was not re-
Fort Brooke, Florida, duly relinquished to the Secretary of the Interior on January 4, 1883, and plat of same sent by the Commis. sioner to the local office; said plat, without accompanying instructions, did not open the land to settlers; under the law the tract, re- duced to 148.11 acres, must be ordered into market for appraisal and sale, and was not subject to settlement claims......... ...603, 606 Florida; historical sketch of military res- ervations in
Fort Cameron, Utah, though abandoned, is not yet restored to the public domain; tim- ber cutting on it is within the jurisdiction of the Land Department; settlement on it is trespass
Residence.
Compare with Abandonment. PRE-EMPTION.
The original settlement must be followed by occupancy as the home of the settler... 637 A failure to follow up settlement by estab lishing a residence, divests the person of all rights acquired by the settlement.......... 574 Pretending to occupy a shanty, near his employer's claim, without stove or cooking utensils, and for seven months of cold weather occupying the house on his employ. er's claim, is not legal residence....
A pre-emptor must reside on the tract to date of his entry; where he made home- stead entry on February 11 and resided on the homestead until April 1, following date of final proof, his application for entry should be rejected
One sleeping on his claim in a pen, or in the open air, and intending to erect a habit- able dwelling so soon as his means or occu- pation permits, maintains a satisfactory res idence.....
Threats and other acts of intimidation by a violent man may excuse failure to main- tain a residence, which has been already es- tablished in good faith
Building and occupation (peaceable) of a house by a young man within twenty-five feet of a house built by a young woman, dur. ing her absence, both houses being built near a spring, are not in themselves acts of intim- idation
Where entryman was absent, under act of June 4, 1880 (as to loss or failure of crops), he was constructively residing on the land. 29 Residence is established the instant that a settler goes upon land for the purpose of establishing it; that circumstances prevent
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